Fact check: Is Ted Poe right when he says feds give ‘convicted foreign criminals a get-out-of-jail-free card to live in the U.S.’?

As a public service, Texas on the Potomac periodically “fact checks” the statements of members of the Texas congressional delegation. Today, we look at claims made by Rep. Ted Poe, R-Humble, about criminal aliens.

Texas Rep. Ted Poe has filed a bill that would stop diplomats from securing U.S. visas if the diplomat’s nation doesn’t allow the United States to return its nationals who have moved to the United States, committed a crime and been ordered to be deported.

When a legal or illegal immigrant commits a serious crime in the United States, the U.S. Immigration and Customs Enforcement agency orders the criminal to return to their country of origin, according to a press release issued last Thursday by the Humble Republican. The release says that “in many cases the home countries either delay or refuse to accept and repatriate their nationals.”

Two other Texans, Reps. Kenny Marchant, R-Carrollton, and Bill Flores, R-Bryan, are among the ten original co-sponsors of Poe’s bill.

Rep. Ted Poe (Diana Carlton / Hearst Newspapers)

The background

Poe is right that a problem exists. ICE officials said the agency does sometimes encounter problems with repatriation, either because countries are reluctant to accept criminals back into their communities or because their internal bureaucracy makes securing necessary travel documents a slow process.

Based on the Supreme Court’s 2001 ruling in Zadvydas v. Davis, if ICE is unable to remove a convicted criminal within a reasonable time frame – defined as 180 days – and the removal seems unlikely in the foreseeable future, then the agency might be forced to release the criminal even if the immigrant has a criminal history.

However, ICE may hold a hearing before an immigration judge to continue to detain an immigrant whose release would pose a special danger to the public – often if they have committed a violent crime or have been deemed mentally unstable.

ICE has released 12,567 individual aliens — including both criminal and non-criminals — since the beginning of fiscal year 2009 based on the terms of the Zadvydas settlement, according to a May 24, 2011 statement that Gary Mead, ICE’s executive associate director for enforcement and removal operations, submitted to the House Judiciary Committee.

The rhetoric

“We give convicted foreign criminals a get-out-of-jail-free card to live in the United States because we cannot permanently detain them and their countries of origin refuse to take them back,” Poe said in his release.

Poe’s release did not mention the 12,567 number from the statement, which Mead submitted to the Subcommittee on Immigration Policy and Enforcement with regard to the Keep Our Communities Safe Act of 2011, an entirely different piece of legislation.

The reality

According to Poe’s release, more than 138,000 foreign criminals “are living freely in the United States because our country has not created an incentive to make these nations take their criminals back.”

The figures Poe said his office added to arrive at that number correspond to a “Total Pending Final Order” category in the ICE table they were drawn from. The table lists criminal immigrants from countries that have a history of not accepting deported nationals.

But criminal immigrants awaiting a “final order” from an immigration judge have not been ordered to leave the country yet — so they cannot have been denied repatriation by their countries of origin.

“Typically, ‘pending final order’ means they have not been ordered to deport,” said Gillian Christensen, a spokesperson for Immigrations and Customs Enforcement.

Poe said in an interview that he believes his law would apply to the 138,000 people “Pending Final Order.” He said a final deportation order is usually granted and the countries with nationals listed have a history of not allowing their criminals to return home.

“But regardless of the numbers, there has to be a consequence,” he told Texas on the Potomac. “There has to be a remedy instead of letting these criminals run free in the United States.”

The press release also includes a “Top Ten list of Offenders”, drawn from the same ICE table. Poe’s press release list — which labels the “Total Pending Final Order” individuals “# of criminals remaining in the United States” — lists Cuba, China, India, Jamaica and Pakistan as the worst offenders. The chart again cites data that actually represents criminals awaiting a deportation order, but whom the legislation would not apply to until such an order is made.

The listed countries do have some of the highest tendencies to refuse repatriation, but the real numbers are considerably lower than the press release chart implies. For example, 7,153 criminals from Cuba were released because they could not be repatriated in 2011, but the chart lists the 49,966 Cubans waiting on a final order as the “# of criminals remaining in the United States.”

Again, the numbers listed in the original chart represent immigrants awaiting a deportation order — not criminals whose nations have refused repatriation.

Antonio Perez, a law professor at the Catholic University of America who previously worked in the U.S. Department of State, said the bill could also encounter legal problems.

He said that while the United States has no obligation to maintain diplomatic relationships with other countries under international law, conducting diplomatic relations is a Presidential power — and the bill could violate the Constitution’s separation of powers.

“I’m pretty sure the executive would raise that issue,” he said. “It’s going to depend on the precise posture of the legislation.”

But Poe said while the executive branch retains diplomatic powers, those powers are constrained by the laws Congress passes and the legislation falls within Congressional authority.

Perez also said the United Nation’s headquarters in New York could complicate the legislation’s feasibility, because under the U.N. headquarters agreement the United States has a duty to allow representatives from all countries to come to New York City.

Poe countered that the United States can refuse diplomatic visas to other nations under current laws, and his legislation would simply encourage officials to make use of that ability to create an incentive for nations to repatriate criminals.

However, Perez said denying foreign diplomats visas as an incentive for repatriation could prompt those nations to deny U.S. diplomats entry in return — which could harm diplomatic relationships and intelligence gathering.

“If they want to do that, that’s fine. If countries don’t want to take their lawfully deported criminals back and they deny us a visa, so be it,” Poe said. He also said he does not think this would occur, and his hope is that nations would simply accept their nationals.